Case Types
Assisted Living Facilities
Assisted living facilities (ALFs) were designed to provide homes for people as they aged. In terms of the amount of care they provide, they sit between Independent Living Facilities, where no care is provided, and Nursing Homes, where extensive care is provided.
What Are Assisted Living Facilities?
Assisted Living Facilities are only allowed to accept patients who need very limited care or no care at all. These include individuals who would be able to live independently but may need very limited assistance with things like taking their daily medications.
What Services are Provided by Assisted Living Facilities?
Most assisted living facilities claim to provide the following services to their residents.
- 24-hour supervision and assistance
- Exercise, health and wellness programs
- Housekeeping and maintenance
- Meals and dining services
- Medication management or assistance
- Personal care services (such as Activities of Daily Living)
- Transportation.
These are services that are traditionally provided by nursing homes.
What is the Difference Between Assisted Living Facilities and Nursing Homes?
Nursing homes are highly regulated by the state and federal governments. They are required to comply with the Federal Nursing Home Reform Act. These laws were first created in 1987 because there was rampant abuse and neglect occurring in nursing homes. These laws set minimum standards that nursing homes must follow.
Unlike nursing homes, assisted living facilities are not required to follow these rules and regulations. The federal regulations that apply to nursing do not apply to assisted living facilities. Many states regulate assisted living facilities. However, those regulations vary from state to state and are often not very strong and require very little of the assisted living facilities.
The reason that there are so few regulations for assisted living facilities is because assisted living facilities are supposed to only accept residents who require no care or very little care. In reality, however, assisted living facilities are accepting the same residents as nursing homes. This is dangerous and illegal.
How Many People Live in Assisted Living Facilities?
The number of assisted living facilities has exploded over the last two decades. Nearly 1 million residents live in the more than 30,000 assisted living facilities. These numbers are expected to rise. The number of people aged 65 and older grew from 35 million in 2000 (12.4% of the U.S population) to 58 million in 2022 (17.3% of the population). By 2030, 1 in 5 (20%) Americans will be over the age of 65. More than 835,000 Americans reside in assisted living communities.
Assisted living facilities are big business. In an attempt to compete with nursing homes, assisted living facilities are accepting patients who need more care than they can provide. Assisted living facilities often aggressively market their services and recruit potential customers through online advertising. These facilities promise staffing levels or services that they simply cannot provide. These advertisements and marketing materials are often directed toward the children of the elderly who make decisions about their parents’ care.
Many Assisted Living Residents Should be in Nursing Homes
More and more assisted living facilities are accepting residents with complex medical conditions and care needs that can only be provided in nursing homes. They do this because they have built so many assisted living facilities, there are no longer enough assisted living residents. In order to make money, they accept patients who are only safe in nursing homes.
Who Owns Assisted Living Facilities?
56% of ALFs in the U.S. are part of a chain. There are around 40 corporations that control nearly all of these facilities in the U.S.
The Rise of Disease-specific Programs in Assisted Living Facilities
As a marketing scheme to get more residents, assisted living communities are marketing disease-specific programs. These are more marketing than they are additional care. Oftentimes no additional care is provided to these residents.
Below is a breakdown by percentage of assisted living communities that provide disease-specific programs:
- 58% of ALFs residents have an Alzheimer’s disease or other dementias program
- 12% of ALFs have a designated dementia care unit, wing, or floor
- 10% of ALFs serve only adults with dementia
- 58% of ALFs have a diabetes program
- 52 % of ALFs have a cardiovascular program
- 48% of ALFs have a depression program
Assisted Living Facilities Often Are Not the Ones Providing Care They Promise
Assisted living facilities often are not even the company providing the care they promise. They contract with outside providers to actually provide the nursing care. These services frequently include:
- 53.8% dental
- 83.3% depression screening
- 61.6% hospice
- 52.1% mental health or counseling
- 82.4% pharmacy / pharmacist
- 73.8% podiatry
- 59.0% skilled nursing
- 69.0% therapy (physical, occupational or speech)
Many of these services are not provided directly by the assisted living facility. They are provided by outside agencies the family may not even be aware of.
Who Provides Care to Residents at Assisted Living Facilities?
The vast majority of care being provided in assisted living facilities is from aides and not nurses. The reason behind this is money. For long term care facilities, the largest individual revenue source is residents (filling beds), and the largest individual expense is the cost of employing nursing staff to provide care to those residents. This creates a financial incentive to take on more residents while reducing the costs of nursing staff. Aides earn much less than nurses.
Can I Sue An Assisted Living Facility for Abuse, Neglect, Negligence, and Wrongful Death?
An injured resident or their family can sue an assisted living facility just as they can a nursing home. The most common reasons that we sue assisted living facilities on behalf of residents and patients are the following:
- Falls and drops
- Wandering off (elopement)
- Choking
- Bedsores (pressure injuries)
- Medication errors
- Dehydration
- Malnutrition
- Infections
- Physical or sexual assault
- Respiratory errors (vent and trach care)
- Understaffing
How Do You Prove Negligence Against Assisted Living Facilities?
Abuse, neglect, and overall poor quality of care in assisted living facilities is caused by corporate decisions when they choose to put their own profits over resident safety. Staff shortages combined with long hours results in worker frustration and fatigue. This increases the risk for errors, abuse, and both patient and worker injuries.
The Motive to Increase Profits Results in Resident Injuries and Death
Abuse and neglect at assisted living facilities are the result of understaffing and undertraining of staff. Poor care is not as simple as an innocent mistake by a nurse or aide. They are caused by top-down systemic failures. Caregivers are often exploited by their employers. They are underpaid, undertrained, and there simply are not enough of them.
The Assisted Living Facility’s Own Marketing Materials
Assisted living facilities have marketing materials that they use to aggressively solicit potential customers. These marketing materials often make lofty promises concerning things like safety, protecting their residents well-being, supervision, promoting a family environment and happiness, and providing the best medical and nursing care available. These are promises the assisted living facility never intended to keep.
Understaffing
Staffing is at the root of most cases of abuse, neglect, or negligence. Errors don’t occur simply because someone is a bad or indifferent aide but because of staff turnover and shortages that make good care impossible. This is a corporate greed and accountability issue, not simply a bad spirited employee.
State Regulations
States have regulations that apply to assisted living facilities. Violating these regulations does not automatically mean you would win an assisted living lawsuit. But they can provide significant evidence that the assisted living facility was negligent.
Nursing Home Bill of Rights
The federal government created the nursing home bill of rights in 1987. Every resident has the right to:
“a safe and clean . . . living environment” or
“adequate and appropriate medical treatment and nursing care and to other ancillary services that comprise necessary and appropriate care consistent with the program for which the resident contracted”
Even though assisted living facilities are not nursing homes, many states provide these same rights to assisted living facility residents.
Community Nursing Standards and Assisted Living Specific Guidelines
There are numerous guidelines that apply specifically to ALFs. These are becoming increasingly important as ALFs continue to take on patients with higher care needs. For example, the Alzheimer’s Association has published guidelines for how assisted living facilities should care for dementia and Alzheimer’s.
The American Geriatrics Society Position Paper on Assisted Living lays out requirements for staff knowledge and skills needed to competently provide care for older adults. This includes signs of condition change, risk for falls, depression, and other common concerns. Similarly, the Scope and Standards of Assisted Living Nursing Practice formulated by the American Assisted Living Nurses Association outlines requirements of care, integrity, education, and assessment for nurses working in the assisted living environment.
What Legal Claims are Available Against Assisted Living Facilities?
Negligence
If an assisted living facility takes on residents they cannot properly care for, they are negligent. Similarly, if they accept a resident and that resident’s condition changes while they are there, then the facility is required to send them to a nursing home. If they do not do this, they are negligent.
Violation of Nursing Home Residents’ Rights
Assisted living facilities can be sued for violating residents rights laws. Residents have numerous rights. Some of those rights that can form the basis of a lawsuit include violating the rights to:
“a safe and clean . . . living environment” or
“adequate and appropriate medical treatment and nursing care and to other ancillary services that comprise necessary and appropriate care consistent with the program for which the resident contracted”
Breach of Contract or Resident Agreement
Assisted living facilities require their residents, or their residents’ family members, to sign an agreement when they are admitted. This is a contract. If an assisted living facility fails to provide the services identified in the resident agreement, they can be sued for breach of contract.
Fraud
Fraud occurs when a company engages in a dishonest practice and those dishonest practices cause harm. Assisted living facilities often have marketing materials that make promises about the care they can provide. Assisted living facilities often make promises that they cannot keep. If the facility made promises to the resident or family directly or in their marketing materials and knew they would not be able to fulfill those promises, they can be sued for fraud.
Wrongful Death
If an assisted living facility’s abuse, neglect, or negligence causes a resident’s death, then the family of the resident can file a wrongful death claim.
Class Actions for Understaffing
Several class action lawsuits have been filed across the country based on understaffing practices. The basis for these lawsuits is that assisted living facilities direct funds directly to the owners that should be used for resident care.
Representative Cases
Elopement (Wandering Off)
Robert was an elderly resident of an assisted living facility in Columbus, Ohio. Robert moved into the facility because he was suffering from dementia, and his family was afraid he was not safe to live at home. At about 1am, Robert walked out of the building into the freezing cold. The doors were supposed to be locked to prevent this from happening. Robert was found the next morning frozen in the parking lot.
Fall
Harland was an 86-year-old resident of an assisted living facility near Cleveland, Ohio. At 5am, nursing staff entered Harland’s room and documented that he had fallen while trying to get into his wheelchair, injured his shoulder, and had numerous cuts and bruises on his hands and feet. The nurse did not contact the doctor. She bandaged his feet creating a slippery surface making it more likely that he would fall again. Four hours later, he was found on the floor again. The bandages on his feet were now soaked in blood. He was delirious and unable to explain what happened. No one called a doctor or the family. 6 hours later he fell again. He was now both confused and complaining of severe chest pain. His daughter was never contacted, but she arrived to visit her father later that day. She called an ambulance. He was transferred to a hospital where he was diagnosed with multiple broken ribs and head trauma. The medical examiner determined that he died of blunt force trauma to his chest during the last fall.
Fall
Mercedes was a 97-year-old resident of an assisted living facility. Until recently, she had lived independently. Mercedes fell and struck her head. She was also on blood thinners. If an elderly person who is on blood thinners falls and has evidence of trauma to their head, they are at high risk of developing a brain bleed. The national standard is to send the resident to the hospital so they can get a CAT scan of their brain. The assisted living facility did not do that. The assisted living facility did not employ any registered nurses. The staff who assessed Mercedes were undertrained and did not recognize that this was a potentially deadly injury. The assisted living facility had no policies and procedures about preventing falls, responding to falls, or updating doctors after a fall. Three days after the fall, Mercedes’ family visited and noticed that she was slurring her speech and nearly delirious. She was sent to the hospital where she was diagnosed with a severe brain bleed that would have been treatable if she was sent to the hospital earlier. She died from these injuries.
Bedsores
Addie was an elderly resident of an assisted living facility near West Virginia. Addie was incontinent of bowel and bladder. She also needed help moving in bed. She was at high risk for developing bedsores. Addie was not an appropriate resident for an assisted living facility. She should have been in a nursing home. The facility did not turn and reposition Addie in bed like they were supposed to. They also allowed her to lay in her own urine and feces for hours. She developed a large, infected bedsore on her lower back. The bedsore and the infection caused her death.
Medication Error
Phil was an 81-year-old man with a history of Parkinson’s disease. He entered an assisted living facility outside of Cleveland, Ohio for a temporary stay while his wife sold his home. Phil’s wife received a call that he was acting strangely and the doctor had ordered medication for anxiety. When Phil’s wife came to visit him days later, he could no longer walk, speak, eat, or even respond. He was taken to the hospital where it was determined that a nurse had given him risperidone, which is an antipsychotic medication. No physician had ever prescribed this medication. In addition to the fact that no doctor ever prescribed this medication it should never be given to Parkinson’s patients because it accelerates Parkinson’s disorder. Phil lost the ability to swallow and eventually died from the effects of the overdose.
Fall
Patrick was a retired physician who was living in an assisted living facility. He had a history of falling and was at high risk for falling again. The assisted living facility did not take additional measures to prevent him from falling and did not take any steps to transfer him to a nursing home. Patrick fell striking his head. He was taken to the hospital where he was diagnosed with a brain bleed that he suffered when his head struck the floor. Despite brain surgery, Patrick died.
Sexual Assault
Lorraine was a resident of an assisted living facility near the Kentucky. Lorraine had dementia and was unable to protect herself. Another resident had a history of exposing himself to other residents, making sexual advances, and being found in their rooms. One night, staff walked into Lorraine’s room and found the male on top of her in a chair sexually assaulting her. She was taken to the hospital where it was confirmed that she was raped. Over the next month, she became withdrawn, stopped eating, and died. This is a common scenario prior to death following an assault of an elderly person.
Infection
Ed was an 89-year-old man who moved into an assisted living facility in November. By January, his family was complaining and emailing the facility that he needed more care and was not doing well. The assisted living facility did not increase the amount of care provided. Ed lost weight and became lethargic. He was sent to the hospital where he was diagnosed with a severe urinary tract infection, dehydration, and malnutrition. He died as a result of these conditions that occurred at the assisted living facility.
How Much is My Assisted Living Facility Case Worth?
Every case is unique and has to be evaluated on its specific facts. The only way to determine the value of your assisted living case is to begin an investigation.
